U.S. v. Chiantese, 75-3534

• Decision Date: 14 October 1977
• Docket Number: No. 75-3534,75-3534
• Citation: 560 F.2d 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph CHIANTESE and John Joseph Cerrella, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1244

560 F.2d 1244

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Joseph CHIANTESE and John Joseph Cerrella,

Defendants-Appellants.

No. 75-3534.

United States Court of Appeals,

Fifth Circuit.

Oct. 14, 1977.

George D. Gold, Miami, Fla., James J. Hogan, Miami Beach, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., Ann T. Wallace, George S. Kopp, Atty., Dept. of Justice, Washington, D. C., Gary L. Betz, Special Atty., Dept. of Justice, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, and FAY, Circuit Judges.

CLARK, Circuit Judge:

The inconsistency of our decisions on how a jury may be instructed on proof of intent and a much too frequent recurrence of erroneous charges warrant this en banc review and a new solution. The simple appearance of the issue is deceptive. To say that specific intent may be inferred from a defendant's knowing conduct seems only to iterate a truism. The problems start when words are changed or added which shift the prosecution's burden of proof and when the charge is used where the defendant's act is equally susceptible of innocent motive and guilty purpose. Because our decisions have fully articulated the supportive reasoning, what's past is proper prologue to our action today.

A Certain Mann Went Down . . .

Our watershed is Mann v. United States, 319 F.2d 404 (5th Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). Dr. Nathan Mann was convicted of wilfully attempting to evade payment of income taxes by omitting items of taxable income from his returns. The government's proof disclosed erroneous entries on the doctor's books concerning cash fees received and unreported items of taxable income reflected in bank deposits and bond purchases. Dr. Mann's defenses were that his accountant was negligent and that gifts explained the money used to purchase the bonds. The trial court gave this charge to the jury, without objection from Dr. Mann:

It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.

We reversed. Although finding the evidence sufficient, we held that the instruction constituted plain error. Citing Berkovitz v. United States, 213 F.2d 468 (5th Cir. 1954); Wardlaw v. United States, 203 F.2d 884 (5th Cir. 1953); and Bloch v. United States, 221 F.2d 786 (9th Cir.), reh. denied, 223 F.2d 297 (1955), Judge Gewin wrote for the court:

The opinions held that the effect of the charge was to tell the jury that it could draw the conclusion that the defendant intended to defeat the payment of the tax from the mere fact that an incorrect return was filed; and resulted in a shifting of the burden of proof from the Government to the defendant. . . .

The instructions in the instant case go beyond the bounds of the charge set out in the above cited cases. If the charge had ended when the jury was told that a person is presumed to intend the natural consequences of his own acts, when considered in the light of the charge as a whole, there would have been no error. When the words, "So unless the contrary appears from the evidence" were introduced, the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.

319 F.2d at 409.

Mann also held that the quoted charge conflicted with the presumption of innocence and was not cured by consideration of the instructions as a whole.

Even though the trial judge did give an accurate charge on the necessity of intent and the burden of proof, we hold that to leave the jury with that part of the charge complained of in this case was not cured by what was said elsewhere in the charge. Instructions to the jury must be consistent and not misleading. The fact that one instruction is correct does not cure error in giving another inconsistent one.

Id. at 410.

Despite Judge Gewin's explicit condemnation of the "So unless the contrary appears from the evidence" language as plain error, it has spawned an anfractuous line of precedent.

Before Mann

A. Background Case Law

In 1897 the Supreme Court analyzed an intent-inferred-from-acts instruction in Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624. The jury was told:

The rule of law in regard to intent is that intent to defraud is to be inferred from willfully and knowingly doing that which is illegal, and which, in its necessary consequences and results, must injure another. The intent may be presumed from the doing of the wrongful or fraudulent or illegal act, and in this case, if you find that the defendant placed that which was worthless or of little value among the assets of the bank at a greatly exaggerated value, and had that exaggerated value placed to his own personal account upon the books of the bank, from such finding of fact you must necessarily infer that the intent with which he did that act was to injure or defraud the bank; but this inference or presumption is not necessarily conclusive. There may be other evidence which may satisfy the jury that there was no such intent, but such an inference or presumption throws the burden of proof upon the defendant; and the evidence upon him in rebuttal to do away with that presumption of guilty intent must be sufficiently strong to satisfy you, beyond a reasonable doubt, that there was no such guilty intent in such transaction.

The Court's reasoning in approving the use of this charge is epitomized in the following excerpts:

Undoubtedly, in criminal cases, the burden of establishing guilt rests on the prosecution from the beginning to the end of the trial.

But, when a prima facie case has been made out, as conviction follows unless it be rebutted, the necessity of adducing evidence then devolves on the accused.

This (instruction) was in application of the presumption that a person intends the natural and probable consequences of acts intentionally done, and that an unlawful act implies an unlawful intent. * * * (I)n other words, that, as the presumption put the intent beyond reasonable doubt, it must prevail, unless evidence of at least equivalent weight were adduced to the contrary. ¹

Id. at 50, 17 S.Ct. at 240-41.

Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441 (1945), was a treason case in which intent was a central issue. In discussing the application of the constitutional two-witness proof requirement to this element, the Court stated:

What is designed in the mind of an accused never is susceptible of proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved by the direct testimony of two witnesses, it would be to hold that it is never provable. . . .

Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from the overt acts. The law of treason, like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts.

Id. at 31, 65 S.Ct. at 933.

The final Supreme Court precedent in our overview is Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). There the Court reversed a conviction for taking government property (spent shell casings from a practice firing area) for lack of proof of intent.

Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. . . .

It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a "presumption" a conclusion which a court thinks probable from given facts. . . .

We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. . . .

. . . Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. . . .

Id. at 274-76, 72 S.Ct. at 255-56. (Footnote omitted.)

Within 2 years of Morissette, this circuit reversed two tax evasion convictions because trial courts charged juries that criminal intent could be presumed from knowing acts. The identical instruction was given in each case. In the first, Wardlaw v....